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Poster: Fact_Checker Date: Mar 19, 2009 10:43am
Forum: feature_films Subject: Re: Are any of these copyright free?

I disagree with the last three paragraphs. (Everything preceding the last three look okay -- "At War With the Army," from the facts given, looks like it suffered the same trap as "D.O.A.," "The Last Time I Saw Paris," etc.)

Video Cellar's post said: "As for "To Kill a Mockingbird" it is really a grey area. A lot of companies latched on to Stewart V's Abend as a precident for things that it doesn't really cover." Movie companies haven't had to "latch on to" Abend because there were clearer, more relevant court decisions before the Abend decision.

When a movie with a lapsed copyright is based upon an earlier published work which still has a valid copyright, the copyright on the earlier work can be used to control rights on the later work. There have been several companies in several lawsuits that lost in court because the copying of the later uncopyrighted work infringed on the valid rights in the earlier work. (The earlier work is called the "underlying work" when it forms the basis of the later work.)

Consider the following:

* The copyrights in the Hopalong Cassidy books prevented the film adaptations of these same books from being used by public domain companies, although the films had not been renewed. It was enough that the books were under copyright for a long time after the films lapsed. (1981 court decision -- nine years before Stewart v. Abend!)

* The play "Pygmalion" was renewed although the 1938 film was not. Budget Films lost in court on this one. (P.S., years after the verdict, because "Pygmalion" is a British play and film, the copyrights on both were revived under GATT.) (1979 decision -- 11 years before Abend!)

* The book, play, opera and movie versions of "Madame Butterfly" involved a near-pyramid of underlying rights. (1950 decision -- forty years (!) before Abend!!)


Also, for "Pygmalion," see

The same earlier post by Video Cellar says: ""Blake of Scotland Yard" (feature version) and "Time of Your Life" are definitely PD."

Wanna bet? The film "The Time of Your Life" (1948) was not renewed, but it is a stagy adaptation of a play with the same title that reportedly has been renewed. You can't "reprint" the film without also "reprinting" the play, and it is illegal to use the play without a license from the theatrical rights company.

I have limited knowledge of "To Kill a Mockingbird," yet I certainly know that Harper Lee's novel provided the basis of the film, that the novel was an award winner that still is highly regarded and has kept in print because it is taught in high schools. It's hard to imagine the publisher letting the book go public domain, and if it had gone public domain we would probably hear about it in these discussions of the film's copyright status. It would also be widely available for free download!! Let's figure the book has a valid copyright. Thus, it looks like the rights to the film (if used in whole) depend on having rights to the underlying source obtained from the novelist or from whoever contracted for the adaptation rights.

Video Cellar wrote: "All this decision really does is reiterate an already existing element of US copyright that, when an individual copyright owner who has assigned the interest in their work to another party dies before the renewal date their successors have the right to cancel all prior arrangements or agreements and take over copyright at renewal and control the use of the work in all derivative works regardless of when they were created."

Okay. For more details on Stewart v. Abend, see a summary:

Bringing up the Stewart v. Abend decision seems misleading. This case was not the precedent for the works discussed here. If you're going to bring up court verdicts that matter, they should be ones where the underlying work was both published and renewed, and where the adaptation was not renewed.

Both and cover a slew of such cases.

(For comparison, and to see why the Stewart v. Abend decision is about a whole nuther species of case, read its summary:

Don't start thinking everything's lost when there is an underlying work that has been renewed.

The same web site linked above that shows that underlying works can land p.d. users in hot water, also shows that sometimes underlying works don't have the power to do that. At, there are frame enlargements from the opening credits of "I Cover the Waterfront" showing that the film acknowledges that there was a book of the same title preceding the film. After that, the web page says the author of the page read the book and realized that the film has almost nothing to do with the book!! It would be pretty hard for the book publisher or the author or the rights-holder of film adaptations to come after you if practically everything in the film was original!!

One of the "Film Superlist" books contains excerpts from a study comparing the book versions of Hopalong Cassidy to the film versions, and a lot of the time the comparison says that the film writers simply kept the title of the book and not much from inside the book. That knowledge chalks one up for the public domain side. (You shouldn't expect public domainers to win on that tactic on "To Kill a Mockingbird" -- it was too respected a book for the film not to respect it in the adaptation.)

Be careful applying this info!! Just as you have to be careful not to argue against the Abend precedent when dealing with "To Kill a Mockingbird", you also have to be sure you look for precedents most carefully when they're cases where the underlying work was both published and renewed, and where the adaptation was not renewed.

If the underlying work was not published, the court will rule differently. That happened with the "McLintock!" film. There wasn't an underlying book, but the Wayne Estate people figured that the UNPUBLISHED screenplay draft could be used as a legal wedge to keep the film from being exploited. It didn't work. The court wasn't going to let them use the same rule used for published books for the "McLintock!" screenplay that not only wasn't published but wasn't even registered for copyright. (Well, actually the screenplay did eventually get submitted for registration, but this was years later. What you should read the court's decision to mean is that the court wouldn't accept as an underlying work the screenplay draft that hadn't even been registered for copyright PRIOR to the film being made and copyrighted and then not renewed.)